5 - Trial in the Crown Court

Question 1

When do Crown Court trials occur, and what types of offences are tried there?

Answer 1

Crown Court trials are necessary when the defendant pleads ‘not guilty,’ requiring evidence to determine guilt. Most defendants plead guilty (around 90% in magistrates’ courts and 60% in the Crown Court).

Crown Court trials, also known as ‘trials on indictment,’ involve ‘indictable’ offences, which include either-way or indictable only offences. These often involve serious either-way offences where magistrates consider their sentencing powers insufficient, leading to cases being sent to the Crown Court for trial.

The Crown Court is the only court where indictable only offences, such as murder, attempted murder, manslaughter, causing grievous bodily harm with intent, and robbery, can be tried.

Question 2

How does the Crown Court differ from a magistrates’ court in terms of structure and personnel?

Answer 2

• The Crown Court differs from a magistrates’ court in that it incorporates space for a jury of 12 people and generally has more space for the public and legal representatives. Crown Courts are larger than magistrates’ courts.
• The court clerk in the Crown Court is distinct from the authorised court officer in the magistrates’ court.
• The Crown Court Clerk is not legally qualified, does not provide legal advice, and is responsible for selecting and taking verdicts from the jury and for arraigning defendants.

Question 3

Who presides over a Crown Court trial?

Answer 3

Trials in the Crown Court take place before a judge and a jury, except for a few exceptional occasions where trials by a judge alone can occur.

The judges who sit in the Crown Court are:
- Circuit Judges - referred to as ‘Your Honour.’ They wear a violet and black robe and a red tippet (sash) over their left shoulder.
- Recorders - referred to as ‘Your Honour.’ Recorders are barristers or solicitors who sit as part-time judges, wearing black robes.
- High Court Judges - referred to as ‘My Lord, My Lady.’ They occasionally hear the most serious Crown Court cases and are distinguished by their red robes, often referred to as ‘red’ judges.

Question 4

What is the role of judges in Crown Court trials?

Answer 4

The judge in a Crown Court trial acts as the arbiter of the law, making rulings on the admissibility of evidence (in the absence of the jury) and directing the jury about matters of law, such as what must be proved and by whom.

While the judge can direct a jury to find a defendant not guilty (for instance, following a successful submission of no case to answer), they cannot direct a jury to find a defendant guilty.

Question 5

What responsibilities do jurors have in a Crown Court trial?

Answer 5

• Jurors are the sole deciders of facts and must decide whether the defendant is guilty. They are required to accept and apply the judge’s directions regarding the law and must reach their decision solely based on the evidence presented in court.
• Jurors will determine the credibility of the evidence and may draw inferences from both the evidence and the defendant’s silence.

Question 6

What are the steps involved in Crown Court trial procedure?

Answer 6

1. Legal arguments
2. Jury selection and swearing in the jury
3. Judge’s preliminary instructions to the jury
4. Prosecution opening speech
5. Defence identifies matters in issue
6. Prosecution evidence
7. Conclusion of the prosecution case
8. Submission of no case to answer
9. Rights to give evidence & adverse inferences
10. Defence opening speech
11. Defence evidence
12. Legal discussions
13. Closing speeches
14. Judge’s summing up
15. Jury bailiffs sworn & jury retire
16. Verdict

Question 7

How are legal arguments managed prior to a Crown Court trial?

Answer 7

• Crown Court cases are actively managed before trial to ensure smooth proceedings.
• Pre-trial hearings before the trial judge may occur to resolve legal arguments.
• Many legal arguments arise on the first day or first few days of trial.
• Legal arguments can be heard before or after the jury is sworn in.

Question 8

What is a voir dire in relation to legal arguments, and when does it occur in Crown Court?

Answer 8

• A voir dire is a procedure that takes place in the absence of the jury to resolve factual disputes relevant to legal arguments.
• It occurs when a legal representative informs the judge that a ‘matter of law’ has arisen.
• During this process, the jury is typically asked to briefly retire while the legal argument is addressed.

Common legal arguments addressed prior to jury trials in the Crown Court include:
- Applications related to bad character
- Hearsay applications
- Applications to exclude evidence under section 76 or 78 of the Police and Criminal Evidence Act 1984
- Abuse of process applications

Question 9

What is the process for jury selection and swearing in the jury?

Answer 9

• A Crown Court trial requires twelve jurors to commence.
• A jury panel of approximately 16 individuals is brought into court from which the 12 jurors will be randomly selected.
• As each juror is called, they take their place in the jury box.
• Before the jurors take their oath or affirmation, the court clerk informs the defendant of their right to object to any juror.
• Each selected jury member is then sworn in.

Question 10

What are the judge’s preliminary instructions to the jury?

Answer 10

• The judge instructs the jury that the evidence upon which they must base their decision is solely what will be presented in court.
• Jurors are warned not to discuss the case with anyone who has not heard the evidence.
• The judge explains that matters of law are for the judge alone to decide, requiring jurors to leave the court during legal applications.

Question 11

What does the prosecution opening speech entail in a Crown Court trial?

Answer 11

The prosecution opening speech focuses on the facts and issues of the case, explaining:
- What the case is about.
- The areas of dispute.
- Why the prosecution believes the defendant is guilty of the charges.

The prosecutor informs the jury of the specific counts the defendant faces.

The use of overly emotive language is to be avoided in the prosecutor’s speech.

Question 12

How does the defence identify matters in issue during a Crown Court trial?

Answer 12

To facilitate the jury’s understanding, the judge may invite the defence to confirm or clarify the issues in the case.

This clarification helps to specify what exactly is in dispute between the prosecution and defence.

Question 13

What is the process for presenting prosecution evidence in a Crown Court trial?

Answer 13

• The prosecution case is served to the defence at the start of the proceedings.
• All witnesses the defence wishes to question are included in the Plea and Trial Preparation Hearing form.
• The prosecution begins by calling all the prosecution witnesses the defence wants to question.
• The prosecutor conducts evidence in chief with each witness, followed by cross-examination by the defendant’s legal representative.
• If the defence does not dispute the content of a prosecution witness’s statement, the prosecution may read the statement to the jury instead of calling the witness.

Question 14

What additional aspects of prosecution evidence are considered in a Crown Court trial?

Answer 14

• The defendant’s ‘record of taped interview’ (ROTI) with the police is presented in an edited format containing essential questions and answers.
• The jury receives a copy of the ROTI, which the prosecution reads out in court.
• If the defendant has a ‘no comment’ interview, the prosecution may present agreed written admissions instead, stating what was asked and that the defendant replied ‘no comment’ to all questions.

Question 15

What occurs at the conclusion of the prosecution case in a Crown Court trial?

Answer 15

The prosecution case is concluded at this stage of the trial.

Following the conclusion, the defence can assess the evidence presented and prepare for their case.

Question 16

What is a submission of no case to answer in a Crown Court trial?

Answer 16

• At the end of the prosecution evidence, the judge may direct the jury to acquit if the prosecution evidence is insufficient for a reasonable court to convict.
• This submission can be made at the defendant’s request or at the judge’s initiative.
• The judge must ensure that the prosecutor has had an opportunity to respond before making this direction.
• This submission is often referred to as a ‘half-time’ submission, occurring at a critical stage in the trial.
  The submission follows the test established by Lord Lane CJ in R v Galbraith (1981).

Question 17

What are the defendant’s rights regarding giving evidence in court, and what is the relevant legislation?

Answer 17

After the prosecution closes its case, the judge asks the defendant’s legal representative if the defendant will give evidence.

If the defendant chooses not to give evidence, the judge will ask if the defendant has been advised that they may give evidence, and if not, the jury may draw adverse inferences.

The legal representative must confirm that the defendant has been advised; otherwise, the case is briefly adjourned.

There is no obligation on the defendant to give evidence, but failure to do so can result in adverse inferences under s.35 Criminal Justice and Public Order Act 1994.

The final decision lies with the defendant, and if the defendant decides not to testify, this must be recorded in writing to show the defendant has freely chosen not to give evidence.

Question 18

When can the defence make an opening speech, and what are the conditions?

Answer 18

After the prosecution case has ended, or following a rejected submission of no case to answer, the defence case begins.

The defence has the right to make an opening speech, but only if one or more defence witnesses (other than the defendant in person) will be called to give factual (not just character) evidence.

Despite this right, a defence opening speech is rarely used.

Question 19

How is defence evidence presented, and what is the order of examination?

Answer 19

If the defendant is represented and chooses to give evidence, the defence advocate will first call the defendant and lead them through evidence in chief.

After that, the defendant will be cross-examined by other defendants (if applicable) and the prosecution.

Other defence witnesses will also be examined in chief, cross-examined, and re-examined in the same order as the defendant.

Question 20

What are legal discussions, and why are they necessary after the defence case?

Answer 20

Once the defence case is closed, it is common practice for the jury to be sent out so that the judge and both the prosecution and defence advocates can discuss any legal matters that should be addressed during the judge’s summing up.

These legal discussions allow for submissions on all legal issues raised during the trial, which will become part of the judge’s directions to the jury.

This process helps reduce the likelihood of appeal in the event of a conviction by addressing potential legal issues before closing speeches and summing up.

Question 21

What happens during the closing speeches in a Crown Court trial?

Answer 21

The prosecution is allowed to make a closing speech if the defendant is legally represented, has called at least one defence witness to give factual evidence (other than the defendant), or if the court permits.

The prosecution’s closing speech always comes first.

The defence is always entitled to make a closing speech, which will follow that of the prosecution.

Question 22

What are the key aspects of the judge’s summing up to the jury?

Answer 22

After the closing speeches, the judge sums up the case to the jury.

This summing up consists of two parts:
1. The law: The judge provides legal directions, including the burden and standard of proof, the ingredients of the offence, any defences, and other necessary legal points.
2. The facts: The judge reviews the prosecution and defence cases, summarising the issues raised by both sides.

The judge will remind the jury that they are the arbiters of fact, while the judge is the arbiter of law.

Legal directions include:
- Burden and standard of proof
- Ingredients of the offence and any defences
- Written route to verdict
- Unanimity or majority verdicts
- Other directions relevant to the specific case
- The judge may also provide a summary of the evidence and a balanced account of the arguments made by both sides.

Question 23

What is the role of the foreman, and when is unanimity required in jury verdicts?

Answer 23

• Before the jury retires, the judge instructs them to appoint a foreman (any gender) who will deliver the jury’s verdict.
• The jury is informed that the only acceptable verdict is a unanimous one.
• If the time comes when a majority verdict may be accepted, the jury will be called back to court for further direction.

Question 24

What is the process of swearing in jury bailiffs, and what do they do?

Answer 24

The jury bailiffs (court ushers who become jury bailiffs after taking an oath or affirmation) are sworn in to ensure the jury is kept in a private and convenient place.

They must not allow anyone to speak to the jury without court permission, except to ask if a verdict has been reached.

The jury then retires to deliberate their verdict, and any questions for the judge are communicated through the bailiff.

Question 25

What is a majority direction, and when can it be given?

Answer 25

Under the Juries Act (JA) 1974, a majority verdict can only be given after the jury has deliberated for at least 2 hours and 10 minutes, as required by the Criminal Practice Direction VI Trial 26Q.

The court must be satisfied that the jury has had a reasonable period to deliberate, considering the case’s complexity.

In long or complex cases involving multiple defendants, the jury could deliberate for many days before a majority direction is considered.

Question 26

How is the verdict delivered, and what happens if the jury has not received a majority direction?

Answer 26

• Once the jury reaches a verdict, the foreman will inform the jury bailiff, and the court will reconvene.
• If the jury has not received a majority direction, the court clerk asks the foreman whether the verdict is unanimous.
• The foreman then announces the verdict as either “guilty” or “not guilty.”

Question 27

What happens if the jury convicts of an alternative offence?

Answer 27

In some cases, the jury can convict of a lesser alternative offence that is included in the indictment.

For example, under the Offences Against the Person Act 1861, a conviction for inflicting grievous bodily harm (s 20) can be an alternative to causing grievous bodily harm with intent (s 18). The lesser offence under s 20 lacks the element of intent present in s 18.

Question 28

What are the consequences of guilty and not guilty verdicts?

Answer 28

Guilty verdict: The defendant may be sentenced immediately or, if reports (such as pre-sentence or psychiatric reports) are required, sentencing will be adjourned to a later date.

Not guilty verdict: The defendant is discharged and free to leave unless there are further matters before the court.

Question 29

What are the four preliminary issues relating to witnesses?

Answer 29

The four preliminary issues relating to witnesses are:

Competence: Determines whether a witness may lawfully be called to testify. Generally, anyone is a competent witness, but there are specific exceptions.

Compellability: Examines whether a witness can be compelled to give evidence, with most witnesses being compellable, though certain witnesses are protected.

Opinion and Expert Evidence: Addresses the general rule that witnesses provide factual evidence, with opinions permitted only in limited contexts.

Privilege: Protects witnesses from self-incrimination and upholds confidentiality in legal communications.

Question 30

What is the principle of competence concerning witnesses?

Answer 30

The principle of competence considers whether a witness is permitted to give evidence to the court, with specific criteria for certain groups:

General Competency: Almost anyone can be a competent witness.

Exceptions: Specific instances where a witness may not be competent include:
Defendant:
- Cannot be a prosecution witness.
- If there are multiple defendants, none can be prosecution witnesses for each other until their proceedings conclude.
Defendants are competent to testify for themselves or for a co-defendant.

Children and Persons with Disabilities: Competency requires that the individual:
- Understands questions.
- Can provide comprehensible answers.

Spouse or Civil Partner: Competent to give evidence for any party.

Deaf or Speech-Impaired Witnesses: Competent if they understand the solemnity of the oath or affirmation and may communicate through interpreters or other means.

Question 31

What is the principle of compellability regarding witnesses?

Answer 31

The principle of compellability addresses whether a witness can be legally compelled to testify, with certain exceptions:

Defendant: Not competent for the prosecution and thus cannot be compelled by the prosecution. May testify on their own behalf but cannot be forced to do so.

Children and Persons with Disabilities: Compellable if deemed competent.

Spouses and Civil Partners: Compellable for the defence, but for the prosecution only in cases specified by PACE s 80:
- Domestic Violence: Includes assault, injury, or threats of injury to the spouse or partner.
- Child Protection: Involves assault, injury, or threats of injury to a child under 16.
- Sexual Offences Against Minors
- Related Offences: Attempts, conspiring, aiding, or abetting the above offences.

Additional Exceptions: There are rules regarding diplomats, sovereigns, and bankers, though these are rarely examined.

Question 32

What is the principle of opinion evidence in court?

Answer 32

Opinion evidence usually restricts witnesses to providing statements of fact, with opinions allowed only under certain conditions:

Acceptable Opinion Evidence: Witnesses may offer opinions in the following scenarios:
- Commonplace Observations: For example, a witness may state someone was “drunk” based on observable signs like slurred speech, dilated pupils, or unsteady movement.
- Identification: Includes opinions derived from facts, such as age, gender, or attire based on observation.
- Recognition of Voice and Handwriting: Opinions based on familiar characteristics, which are deemed admissible due to their commonplace nature.

Best Practice: Questions should generally focus on observable facts rather than opinion. The law permits opinions in scenarios where inferences are universally recognised as commonplace, such as identification.

Question 33

What is the role of expert evidence in court?

Answer 33

Expert evidence is provided to help the court understand technical matters that require specialised knowledge. The principles are as follows:

Requirements for Expert Testimony: Only qualified individuals may provide expert opinions on technical issues:
- Medical Testimony: Doctors (not nurses) may offer opinions on whether an injury could have been caused in the manner described by a victim.
- Qualification of Expertise: Expertise is acquired through formal study, practical experience, or both. The presenting party must prove that the expert is sufficiently qualified.

Role and Neutrality of Experts: Experts act as independent consultants rather than partisan witnesses, and are expected to be neutral and objective.
- Good Practice: Experts should avoid expressing opinions on the “final” issue without permission. Instead, they should focus on specific components, such as offering an opinion on the speed of a car based on skid marks rather than stating if the defendant caused death by dangerous driving.
- Jury’s Discretion: The jury is not bound to accept expert opinions and may form their own conclusions unless the evidence overwhelmingly supports only one conclusion.

Question 34

What are the key forms of privilege recognised in court?

Answer 34

There are two main forms of privilege recognised in court to protect witness information:

Privilege Against Self-Incrimination: Protects witnesses (excluding the defendant) from being compelled to provide testimony or documents that may incriminate themselves. This privilege does not extend to protecting others, such as a spouse, or for civil liability. Authorities can pursue other means of obtaining information if a witness claims this privilege.

Legal Professional Privilege: Comprises two categories:
Litigation Privilege: Protects third-party communications specifically made in relation to litigation.

Advice Privilege: Protects all direct communications between lawyer and client unless waived by the client.

Waiver of Privilege: Only the client can waive privilege, and generally applies to all privileged communication within the waiver’s scope.

Question 35

Provide a summary of the preliminary issues faced with witnesses.

Answer 35

Opinion Evidence: Courts accept opinions from witnesses if they relate to commonplace events (where perception is relevant) or if given by an expert.

Privilege:
- Against Self-Incrimination: Witnesses (except the defendant) can refuse to answer questions or provide documents that may incriminate them.
- Legal Professional Privilege: All direct communications between a lawyer and client are confidential unless waived by the client. Communications with third parties are privileged in litigation but not in general advice.

Competence and Compellability: Generally, most witnesses are both competent and compellable, with specific rules for certain categories:
- Defendant: Not competent for the prosecution but may testify on their own behalf or for a co-defendant; cannot be compelled to testify.
- Children and Persons with Disabilities: Competent if they can understand questions and provide comprehensible answers; if competent, they are also compellable.
- Spouse/Civil Partner: Competent for any party; compellable for the prosecution only in cases involving domestic violence or child abuse, but may be compelled to testify for their partner.
- Deaf or Speech-Impaired: Competent if they understand the solemnity of the oath or affirmation; if competent, they are compellable.

Question 36

What is the general rule regarding oaths and affirmations for witnesses?

Answer 36

All witnesses must either take an oath before giving evidence or make an affirmation; the law views no difference between the two.

An exception is made for children and individuals of ‘unsound mind,’ where evidence may be received unsworn if they do not understand the solemnity of the oath.
- Youth Justice and Criminal Evidence Act, s.55: Test is if they ‘have sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth.’

The court usher should have various oath cards to cover main religions; the goal is for the oath to be one that the witness would find ‘binding on one’s conscience.’
- A Muslim witness, for example, was deemed properly sworn on the New Testament.

Refusing to take an oath or affirmation can result in punishment as contempt of court.

Question 37

What are the primary rules for the examination of witnesses?

Answer 37

Examination in chief covers several key areas, including:
- Form of questioning
- Memory refreshing
- Hostile witnesses
- Previous consistent statements
- Res gestae
- Suspect’s response to police allegation
- Complaints
- Recent fabrication

Question 38

What are the guidelines for the form of questioning during examination in chief?

Answer 38

Questions should be non-leading in examination in chief to ensure the evidence is not influenced.

Evidence from leading questions may be inadmissible or carry less weight.

Exceptions: Leading questions are allowed on undisputed issues or if the witness is deemed hostile.

Question 39

What is the process for refreshing a witness’s memory in court?

Answer 39

Out-of-court statements are hearsay but can be used in three ways:

Agreed statements may be read as if the witness is testifying.

Witnesses may ‘refresh their memory’ from statements; best practice suggests:
- Criminal Justice Act, s.139: Memory refreshing is permissible if the earlier account provides a ‘significantly better’ recollection.
- Witnesses should read the statement quietly, and evidence should appear to come from memory, not read verbatim.

Statements may also be used in cross-examination on previous inconsistent statements.

A witness may review their statement in private (e.g., a dyslexic witness).

Refreshing memory allows cross-examination on the statement’s content without it entering evidence. If additional material is raised, the other side can apply to admit the statement for jury consideration.

Question 40

What occurs when a witness is deemed hostile?

Answer 40

If a witness with key evidence refuses to provide it in court, the party may request the Judge to treat them as hostile.

• Example: Domestic violence cases, where a partner retracts statements due to pressure.
• If the witness’s account conflicts with the original statement, and the Judge finds they are “not desirous of telling the truth,” the party may cross-examine and present the previous statement as truth.

The inconsistent statement may then be used to prove the truth of its contents, even if it was previously deemed inadmissible hearsay.

Question 41

Under what circumstances can previous consistent statements be used?

Answer 41

Courts typically do not admit prior consistent statements as they do not inherently make the evidence more reliable.

Criminal Justice Act 2003, s.120 broadens admissibility of earlier statements; exceptions include:
- Res gestae: Immediate reactions to a crime (e.g., an exclamation on public transport after an assault) are admissible as they show truth without fabrication.
- Police Allegations: Responses to police accusations (whether denials or confessions) are admissible, with denials showing the defence’s consistency.
- Complaints: Quick complaints about an incident are more likely reliable, and s.120 allows prior complaints if the complainant affirms them as true.
- Recent fabrication: An earlier statement may rebut a recent fabrication claim by proving prior consistency in statements.

Question 42

What is the res gestae exception, and when is it applicable?

Answer 42

Res gestae refers to statements made as immediate reactions to a crime, allowing admissibility as they’re viewed as true, uncontrived responses.
E.g., an exclamation on public transport after an assault could be admissible to prove the allegation’s truth.

Immediate statements are admissible as they imply no time for fabrication.

Question 43

How are statements by suspects in response to police allegations used?

Answer 43

Responses to police allegations (denials or confessions) are admissible.
- Confessional statements can establish guilt.
- Denials are useful for evaluating the defence’s overall consistency, but cannot independently prove the denial’s truth.

Question 44

When can complaints be used as evidence?

Answer 44

Earlier complaints are admissible under the ‘doctrine of recent complaint,’ which holds that faster complaints are more likely reliable.

Criminal Justice Act 2003, s.120 extends admissibility, allowing earlier complaints to be used to prove both consistency and the complaint’s truth.

Question 45

How does a witness rebut an allegation of recent fabrication?

Answer 45

If accused of fabricating recent testimony, a witness may prove an earlier statement was made to the same effect.

The court must reference Criminal Justice Act 2003, s.120 to determine if an earlier statement exists that negates the recent fabrication claim.

Question 46

What are the key elements of cross-examination?

Answer 46

Cross-examination allows leading questions to challenge the witness’s account:
- Challenges must clearly put forward contradictory facts or address character issues openly (Browne v Dunn principle).
- Questions should focus on facts, not encourage the witness to provide opinions unless on ‘everyday’ matters (e.g., whether someone appeared intoxicated).

Question 47

What are the guidelines for questioning in cross-examination?

Answer 47

Leading questions, which suggest their answers, are allowed in cross-examination.
- Browne v Dunn: Failure to challenge a witness on a specific point implies acceptance of that point.

Questions should remain factual, avoid encouraging the witness to offer opinions unless necessary, and should not prompt witnesses to evaluate the truthfulness of other testimonies.

Question 48

When are previous inconsistent statements used in cross-examination?

Answer 48

Previous statements are typically inadmissible hearsay unless a witness’s live testimony directly contradicts them.
- Criminal Justice Act 2003, s.119: If a witness’s initial statement materially conflicts with current testimony, the prior statement can be used to highlight the inconsistency.
- Statements made closer to the event often carry more weight, revealing potential issues with the witness’s reliability.

Question 49

What restrictions exist on cross-examination?

Answer 49

Cross-examination should aim to avoid causing undue distress unless necessary and relevant to the case.
- Judges may limit the duration or prohibit repetitive questioning.
- For victims of sexual offences, restrictions apply to questions regarding prior sexual history unless granted court permission (Youth Justice and Criminal Evidence Act 1999, s.41).

Question 50

What is the rule on finality of collateral matters in cross-examination?

Answer 50

To prevent unnecessary disputes, the court finalises collateral matters related to a witness’s credibility.
- If a witness lies about an unrelated issue (e.g., a mortgage application), the opposing party may not introduce additional evidence to counter this denial.
- Exceptions apply to issues like bias or partiality, where counter-evidence may be permissible to challenge credibility.

Question 51

What rules apply to re-examination and the form of questions used?

Answer 51

Re-examination provides an opportunity to clarify issues raised in cross-examination that may have been unclear in the witness’s initial examination.

Questions should adhere to the same rules as in examination-in-chief, avoiding leading questions unless the issue is undisputed.

Question 52

Provide a summary of the examination of witnesses.

Answer 52

This element considered:
- Oaths and affirmations
- Examination in chief
- Form of questioning
- Memory refreshing
- Hostile witnesses
- Previous consistent statements
- Res gestae
- Suspect’s response to police allegation
- Complaints
- Recent fabrication
- Cross-examination
- Form of questioning
- Previous inconsistent statements
- Restrictions including finality on collateral matters
- Re-examination
- Form of questioning